* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. JOSE ALBERTO MUNOZ,

Defendant-Appellant. Nos. 96-7121 & 97-7047 (D.C. Nos. CV-95-196-B & 90-CR-46-1-S) (E.D. Okla.)

ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.1 The § 2255 motion was filed before the effective date of the Antiterrorism

and Effective Death Penalty Act. Therefore, a cert ificate of appealability is not required. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). -2- Appeal No. 96-7121 Defendant Jose Alberto Munoz appeals the district c ourt’s order denying his motion under 28 U.S.C. § 2255 to vacate, set as ide, or correct his sentence and conviction. We affirm. 1 The parties are familiar with the underlying facts; therefore, we do not recite them here. On appeal, defendant alleges that the civil forfeiture of two automobiles in which he had a possessory interest c onstituted double punishment in violation of the Double Jeopardy Clause. He als o claims he received ineffective assistance of counsel in the entry of h is guilty plea because he had been advised that he would receive a sentence subst antially shorter than the one imposed. He further maintains that his appellate c ounsel was ineffective and the district court erred in failing to hold a hearing o n his § 2255 motion. Defendant did not raise these arguments in his dire ct appeal. See United States v. Munoz , 946 F.2d 729 (10th Cir. 1991). Claims not brought on direct appeal are barred absent a showing of cause and pre judice. See United States v. Walling , 982 F.2d 447, 448-49 (10th Cir. 1992). The distr ict court addressed the double jeopardy claim on the ground that cause can be shown by an intervening-3-

change in the law, citing Worthen v. Kaiser , 952 F.2d 1266, 1268 (10th Cir. 1992). The case of United States v. Ursery , 116 S. Ct. 2135 (1996), decided after defendant’s direct criminal appeal, held that civil forfeitures do not constitute punishment for double jeopardy purposes. See id. at 2149. Therefore, to the extent a change in the law permitted collateral rev iew of this claim, the Supreme Court has resolved the issue against defendant. Defendant’s claim of ineffective assistance of coun sel is reviewable in collateral proceedings. See United States v. Galloway , 56 F.3d 1239, 1240, 1242 (10th Cir. 1995) (en banc). Defendant must establi sh that counsel’s representation was objectively unreasonable and that counsel’s performance prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687 (1984). To show prejudice in a guilty plea claim, the defendant must demonstrate that he would not have pleaded guilty and would have insist ed on a trial, but for counsel’s unprofessional errors. See Lasiter v. Thomas , 89 F.3d 699, 703 (10th Cir.), cert. denied , 117 S. Ct. 493 (1996). Defendant’s statements made on the record belie his allegation that he was promised a shorter sentence than the one imposed. The district judge clearly stated the sentencing range and explained that the length of the sentence would be determined solely by the judge, who was authorized to impose any sentence2 The record does not reflect that the “Second Supple mental for Writ of

Habeas Corpus,” attached to defendant’s appellate b rief, was filed in the district court. It should be apparent from our resolution o f this appeal and defendant’s direct criminal appeal, however, that appellate cou nsel was not ineffective. -4- within the sentencing range. See II R. 12, 17-18. Defendant stated that no one had made any promises to the contrary. See id. at 17-18. Defendant has provided no evidence except his own s tatement that he was promised a shorter sentence. Under the circumstanc es, he is “bound by his ‘solemn declarations in open court.’” Lasiter , 89 F.3d at 703 (quoting Blackledge v. Allison , 431 U.S. 63, 74 (1977)). Moreover, even if defen dant’s attorney had erroneously estimated the sentence defendant could receive, counsel’s error did not constitute a constitutionally deficient perform ance rendering his assistance ineffective. See United States v. Gordon , 4 F.3d 1567, 1570 (10th Cir. 1993). In addition, the district court cured any defect in co unsel’s incorrect sentence prediction by informing defendant on the record of the correct sentencing range. See Lasiter , 89 F.3d at 703. Accordingly, defendant has faile d to demonstrate ineffective assistance of trial counsel. We do not consider defendant’s claim of ineffective assistance of appellate counsel because it was not argued to the district c ourt. 2See Rademacher v. Colorado Ass’n of Soil Conservation Dists. Med. Ben efits Plan , 11 F.3d 1567, 1571 (10th Cir. 1993). Finally, because it is clear from the record that defendant-5-

is entitled to no relief, the district court was no t required to hold an evidentiary hearing. See United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997).
Appeal No. 97-7047 Defendant appeals the district court’s order denyin g his motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). His argument is foreclosed by United States v. Avila , 997 F.2d 767, 768 (10th Cir. 1993) (holding amend ment to U.S.S.G. § 3E1.1 not retroactive so not basis for s entence reduction). Defendant’s motion to expedite appeal is denied as moot. The judgments of the United States District Court for the EasternDistrict of Oklahoma are AFFIRMED. The mandate shall issue forthwith.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge